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Two residents of Emory Church Road in Olney have filed a lawsuit against the Montgomery County Council and the Maryland Department of the Environment seeking to overturn a decision on a water/sewer category change that could allow a large church to be built on the rural road.

David Reile and Barbara Suddarth, his wife, filed a lawsuit May 26 in Montgomery County Circuit Court, alleging that the County Council violated state law when it granted conditional approval for a water/sewer category change for the site, known as the Doherty property, in April 2008.

Spokespersons for both the county and the state Department of the Environment would not comment on the case because it is ongoing litigation.

Both Montgomery County and the State of Maryland asked the court to dismiss the lawsuit, said Michele Rosenfeld, a lawyer representing the plaintiffs. A hearing on that request is scheduled for 10 a.m. Sept. 17 at Montgomery County Circuit Court, 50 Maryland Ave. in Rockville.

Maryland state law gives the Maryland Department of Environment exclusive authority to approve amendments to the county's water/sewer plan, the lawsuit states.

"We allege that an ‘approval' that leaves the final decision dependent on a Planning Board determination of conformance to the master plan circumvents the requirement that the final decision rest with MDE," Rosenfeld said.

"In other words, the ‘conditional' approval improperly delegated this responsibility to the Planning Board," she said.

Reile and Suddarth live next door to a 14.3-acre parcel of land at 3110 Emory Church Road that is served by a private well and septic system. First Baptist Church of Wheaton has purchased the property and seeks to build a two-story, 50,000- square-foot building on the site.

Residents living in the vicinity of Emory Church Road have banded together to voice their opposition to the relocation of the church from Wheaton to their quiet neighborhood, arguing that such a project does not fit the character of the tree-lined, rural road, which at places is not wide enough for two vehicles to pass simultaneously.

Reile and Suddarth felt strongly enough to take their opposition a step further.

"We do not think a legal water/sewer category change has been approved," he said. "If not, the project cannot proceed at all. So the right time to raise that question is now, not at the end of the development process."

The lawsuit also contends that the Olney Master Plan, adopted in 2005, recommends that water and sewer not be extended to the property.

Katherine Nelson, environmental planner for the Montgomery County Planning Department, said that when the Planning Board considered the case to recommend water and sewer extension in the environmentally sensitive area, they agreed to make sure that certain criteria were met at the preliminary plan stage.

That decision was forwarded to the County Council.

"The County Council echoed that decision, that the Planning Board would provide detailed scrutiny at the preliminary plan stage," she said. "They had full assurance that the environmentally sensitive issues would be addressed."

A preliminary plan shows a proposed development's relationship to its neighbors and contains specific lot and street layout, including details such as utilities, the adequacy of public infrastructure, and conformity with environmental and transportation regulations.

No preliminary plan for the Doherty property has yet been filed.

The property is environmentally sensitive because it includes two small streams that lie within the stream valley buffer, as well as many specimen trees.

Nelson added that the Planning Board would continue to consider community concerns, as well as environmental concerns, as the process moves forward.

The Rev. Ed Williams, pastor of First Baptist Church of Wheaton, said he has no comment on the lawsuit and that the church is continuing to work with the Planning Board.

"All we're trying to do is follow the law, and it's not easy since the laws are constantly changing," he said. "It has been a very challenging process to make progress. It's just been miserable."

Reile and Suddarth are hoping that the lawsuit will halt the proposed development.

"If the court finds in our favor, then the property does not now have access to public water/sewer and therefore the developer may not proceed with any development until or unless a water/sewer category change is properly adopted," Reile said.